We cannot depend on the constitution to protect our freedoms

Martin van StadenAs part of its “myth-busting” initiative around the response to Covid-19 in SA, the government published an online graphic declaring that “our freedoms will never be at risk and are protected by the constitution”. It has inadvertently peddled its own myth in the process: that South Africans’ civil liberties are kept alive by nothing more than an inanimate legal text and the good intentions of politicians.

I have more faith in the constitution than the University of Pretoria’s Prof Koos Malan professes in his excellent book, but the basic premise of his argument is entirely correct: the claimed supremacy of the constitution alone will not secure the blessings of freedom and limited government. This experiment might just convince the government to, for instance, impose a permanent curfew, since the lockdown curfew seems to be at least partly responsible for the reduced pressure on hospital trauma units. This might seem far-fetched, and hopefully it is, but if I told you two years ago that the government would in effect ban shaking hands and going to church, you would have said the same thing.

That is to say that the constitution may even provide for its own undoing, which is what we are seeing with the process to weaken South Africans’ property rights by amending section 25 of the current constitution to allow for expropriation without compensation.

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